1
EXHIBIT 4.5
- -------------------------------------------------------------------------------
SECURITY AGREEMENT
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely
as Owner Trustee under the
Wackenhut Corrections Trust 1997-1
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders and the Holders
Dated as of June 19, 1997
- -------------------------------------------------------------------------------
2
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of June 19, 1997 (as amended,
supplemented or otherwise modified from time to time, this "Security
Agreement"), is made between FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, but solely as Owner Trustee under the Wackenhut Corrections Trust
1997-1 (the "Borrower"), and NATIONSBANK, NATIONAL ASSOCIATION, a national
banking association ("NationsBank"), as agent for itself, the Administrative
Agent, the Lenders and the Holders (in such capacity, the "Agent").
Preliminary Statement
Pursuant to the Credit Agreement dated as of even date herewith (as
amended, supplemented, restated or otherwise modified from time to time, the
"Credit Agreement"), by and among the Borrower, NationsBank, as Administrative
Agent for the Lenders (in such capacity, the "Administrative Agent") and the
financial institutions from time to time parties thereto (the "Lenders"), the
Lenders have severally agreed to make Loans to the Borrower in an aggregate
amount not to exceed the aggregate Commitments (as defined in the Participation
Agreement) upon the terms and subject to the conditions set forth therein, to be
evidenced by the Notes issued by the Borrower under the Credit Agreement.
Pursuant to the Trust Agreement dated as of even date herewith (as
amended, supplemented, restated or otherwise modified from time to time, the
"Trust Agreement"), by and among First Security Bank, National Association,
individually and as Owner Trustee, and the financial institutions from time to
time parties thereto (the "Holders"), the Holders have severally agreed to make
Holder Fundings in an aggregate amount not to exceed the aggregate Holder
Commitments (as defined in the Participation Agreement).
The Borrower is, or shall be upon the date of the initial Advance with
respect thereto, the legal and beneficial owner of each Property.
It is a condition, among others, to the obligation of the Lenders to
make their respective Loans to the Borrower under the Credit Agreement, and the
obligation of the Holders to make Holder Fundings under the Trust Agreement,
that the Borrower shall have executed and delivered this Security Agreement to
the Agent, for the benefit of the Lenders and the Holders.
3
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to make their respective Loans under the Credit Agreement, and to induce
the Holders to make their respective Holder Fundings under the Trust Agreement,
the Borrower hereby agrees with the Agent, for the benefit of the Lenders and
the Holders, as follows:
1. Definitions. (a) As used herein, the following terms
shall have the following respective meanings:
"Accounts" shall mean all "accounts", as such term is defined
in the Uniform Commercial Code, now owned or hereafter acquired by the
Borrower, including without limitation (a) all accounts receivable,
other receivables, book debts and other forms of obligations now owned
or hereafter received or acquired by or belonging or owing to the
Borrower, whether arising out of goods sold or leased or services
rendered by it or from any other transaction (including without
limitation any such obligations which may be characterized as an
account under the Uniform Commercial Code), (b) all of the Borrower's
rights in, to and under all purchase orders or receipts now owned or
hereafter acquired by it for goods or services, (c) all of the
Borrower's rights to any goods represented by any of the foregoing
(including without limitation unpaid sellers' rights of rescission,
replevin, reclamation and stoppage in transit and rights to returned,
reclaimed or repossessed goods), (d) all monies due or to become due to
the Borrower under all purchase orders and contracts for the sale or
lease of goods or the performance of services or both by the Borrower
(whether or not yet earned by performance on the part of Borrower) now
or hereafter in existence, including without limitation the right to
receive the proceeds of said purchase orders and contracts, and (e) all
collateral security and guarantees of any kind, now or hereafter in
existence, given by any Person with respect to any of the foregoing.
"Chattel Paper" shall mean any and all "chattel paper", as
such term is defined in the Uniform Commercial Code, now owned or
hereafter acquired by the Borrower, wherever located.
"Contracts" shall mean any and all "contracts", as such term
is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, including without limitation all contracts,
undertakings, or agreements in or under which Borrower may now or
hereafter have any right, title or interest, including without
limitation any
2
4
agreements relating to the terms of payment or the terms of
performance of any Account.
"Documents" shall mean any and all "documents", as such term
is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located.
"Instruments" shall mean any and all "instruments", as such
term is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located, including without
limitation all certificated securities, all certificates of deposit,
and all notes and other evidences of Indebtedness.
"Obligations" shall mean any and all obligations of the
Borrower, now existing or hereafter arising under the Credit Agreement,
the Notes or any other Operative Agreement.
(b) Capitalized terms used but not otherwise defined in this
Security Agreement shall have the respective meanings specified in the
Credit Agreement or Appendix A to the Participation Agreement (as
defined in the Credit Agreement).
2. Grant of Security Interest. To secure payment of all the
amounts advanced under the Credit Agreement, the Notes, the Trust Agreement and
the Certificates, and all other amounts now or hereafter owing to the Agent, the
Lenders, the Administrative Agent or the Holders thereunder or under any other
Operative Agreement, THE BORROWER HEREBY CONVEYS, GRANTS, ASSIGNS, TRANSFERS,
HYPOTHECATES, MORTGAGES AND SETS OVER TO THE AGENT (FOR ITSELF AND ON BEHALF OF
THE LENDERS AND THE HOLDERS), A FIRST PRIORITY SECURITY INTEREST IN AND LIEN ON
THE TRUST ESTATE AND THE FOLLOWING (AS A PART THEREOF OR IN ADDITION THERETO):
(A) all right, title and interest of the Borrower in
and to the Operative Agreements now existing or hereafter
acquired by the Borrower (including without limitation all
rights to payment and indemnity rights of the Borrower under
the Participation Agreement) (all of the foregoing in this
paragraph (A) being referred to as the "Rights in Operative
Agreements");
(B) all right, title and interest of the Borrower in
and to all of the fixtures, chattels, business machines,
machinery, apparatus, equipment, furnishings, fittings and
articles of personal property of every kind and nature
whatsoever, and all appurtenances and additions thereto and
substitutions or replacements thereof (together with, in each
case, attachments,
3
5
components, parts and accessories) currently owned or
subsequently acquired by the Borrower and now or subsequently
attached to, or contained in, comprising a portion of or used
or usable in any way in connection with the Property,
including but without limiting the generality of the
foregoing, all equipment referred to in the Appraisals and the
Equipment Schedules pursuant to the Lease or the Participation
Agreement, all computer hardware, and all heating, electrical,
and mechanical equipment, lighting, switchboards, plumbing,
ventilation, air conditioning and air-cooling apparatus,
refrigerating, and incinerating equipment, escalators,
elevators, loading and unloading equipment and systems,
cleaning systems (including without limitation window cleaning
apparatus), telephones, communication systems (including
without limitation satellite dishes and antennae),
televisions, computers, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security
systems, motors, engines, machinery, conveyers, pipes, pumps,
tanks, conduits, appliances, fittings and fixtures of every
kind and description (all of the foregoing in this paragraph
(B) being referred to as the "Borrower's Equipment");
(C) all right, title and interest of the Borrower in
and to all of the fixtures, furnishings and fittings of every
kind and nature whatsoever, and all appurtenances and
additions thereto and substitutions or replacements thereof
(together with, in each case, attachments, components, parts
and accessories) currently owned or subsequently acquired by
the Borrower and now or subsequently attached to, or contained
in or used or usable in any way in connection with any of the
Property (all of the foregoing in this paragraph (C) being
referred to as the "Fixtures"; all Land, Fixtures and
Borrower's Equipment being collectively referred to herein as
the "Property");
(D) all estate, right, title, claim or demand
whatsoever of the Borrower, in possession or
expectancy, in and to the Property or any part thereof;
(E) all right, title and interest of the Borrower in
and to all substitutes, modifications and replacements of, and
all additions, accessions and improvements to, the Fixtures
and Borrower's Equipment, subsequently acquired by the
Borrower or constructed, assembled or placed by the Borrower
on the Land, immediately upon such acquisition, release,
4
6
construction, assembling or placement, and in each such
case, without any further conveyance, assignment or
other act by the Borrower;
(F) all right, title and interest of the Borrower in,
to and under all patents, trade names, trade marks, logos,
copyrights, applications for patents, trademarks and
copyrights, licenses, software, good will and books and
records relating to or used in connection with the operation
of the Property or any part thereof; all general intangibles
now existing or hereafter arising; all rights to the payment
of money or property; and all rights in and to any causes of
action or choses in action now or hereafter existing in favor
of the Borrower and all rights to any recoveries therefrom;
(G) all right, title and interest of the Borrower in
and to all unearned premiums under insurance policies now or
subsequently obtained by the Lessee relating to the Property
and the Borrower's interest in and to all proceeds of any such
insurance policies, including without limitation the right to
collect and receive such proceeds; and all awards and other
compensation, including without limitation the interest
payable thereon and the right to collect and receive the same,
made to the present or any subsequent owner of the Property
for the taking by eminent domain, condemnation or otherwise,
of all or any part of the Property or any easement or other
right therein;
(H) all right, title and interest of the Borrower in
and to (i) all consents, licenses, certificates and other
governmental approvals relating to construction, completion,
use or operation of the Property or any part thereof and (ii)
all Plans and Specifications relating to the Property;
(I) the Lease, and all Rent and all other rents,
payments, purchase prices, receipts, revenues, issues and
profits payable under the Lease or pursuant to any other lease
(or guaranty thereof) with respect to the Property;
(J) all Instruments and Documents;
(K) all Contracts;
(L) all Chattel Paper (including without
limitation all rights under the Lease);
5
7
(M) all money, cash or cash equivalent and bank
accounts;
(N) all Accounts;
(O) all proceeds of any operating agreements and
other agreements with any governmental authority
relating to the Property; and
(P) all proceeds, both cash and noncash, of any
of the foregoing.
(All of the foregoing property and rights and interests now owned or
held or subsequently acquired by the Borrower and described in the foregoing
clauses (A) through (P) are collectively referred to as the "Trust Property").
TO HAVE AND TO HOLD the Trust Property and the rights and privileges
hereby granted unto the Agent, its successors and assigns for the uses and
purposes set forth, until all of the obligations of the Borrower under the
Operative Agreements are paid in full; provided, that EXCLUDED from the Trust
Property at all times and in all respects shall be all Excepted Payments.
3. Payment of Obligations. The Borrower shall pay all
Obligations in accordance with the terms of the Credit Agreement,
the Notes and the other Operative Agreements and perform each
term to be performed by it under the Credit Agreement, the Notes
and the other Operative Agreements.
4. Other Covenants. At any time and from time to time, upon the
written request of the Agent, and at the sole expense of the Borrower, the
Borrower will promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Agent may reasonably request for
the purposes of obtaining or preserving the full benefits of this Security
Agreement and the rights and powers granted by this Security Agreement. In
addition, the Borrower will execute and deliver the Mortgage Instruments with
respect to each Property.
5. Default; Remedies. (a) If a Credit Agreement Event of
Default has occurred and is continuing:
(i) the Agent, in addition to all other remedies
available at law or in equity, shall have the right forthwith
to enter upon the Land (or any other place where the Property
is located at such time) without charge, and take possession
of all or any portion of the Trust Property, and to re-let or
sell the Trust Property and receive the rents, issues and
profits
6
8
thereof, to make repairs and to apply said rentals and
profits, after payment of all necessary or proper charges and
expenses, on account of the amounts hereby secured; and
(ii) the Agent, shall, as a matter of right, be
entitled to the appointment of a receiver for the Trust
Property, and the Borrower hereby consents to such appointment
and waives notice of any application therefor.
(b) If an Event of Default has occurred and is continuing, the
Agent may proceed by an action at law, suit in equity or other
appropriate proceeding, to protect and enforce its rights, whether for
the foreclosure of the Lien of this Security Agreement, or for the
specific performance of any agreement contained herein or for an
injunction against the violation of any of the terms hereof. The
proceeds of any sale of any of the Trust Property shall be applied
pursuant to Section 8 of the Credit Agreement. In addition, the Agent
may proceed under Section 11 hereof.
(c) The Borrower hereby waives the benefit of all appraisal,
valuation, stay, extension and redemption laws now or hereafter in
force and all rights of marshaling in the event of any sale of the
Trust Property or any portion thereof or interest therein.
6. Remedies Not Exclusive. The Agent shall be entitled to enforce
payment of the indebtedness and performance of the Obligations and to exercise
all rights and powers under this Security Agreement or under any of the other
Operative Agreements or other agreement or any laws now or hereafter in force,
notwithstanding that some or all of the Obligations may now or hereafter be
otherwise secured, whether by deed of trust, mortgage, security agreement,
pledge, Lien, assignment or otherwise. Neither the acceptance of this Security
Agreement nor its enforcement, shall prejudice or in any manner affect the
Agent's right to realize upon or enforce any other security now or hereafter
held by the Administrative Agent, it being agreed that the Agent shall be
entitled to enforce this Security Agreement and any other security now or
hereafter held by the Agent in such order and manner as the Agent may determine
in its absolute discretion. No remedy herein conferred upon or reserved to the
Agent is intended to be exclusive of any other remedy herein or by law provided
or permitted, but each shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute. Every power or remedy given by any of the Operative Agreements to
the Agent or the Administrative Agent or to which
7
9
it may otherwise be entitled, may be exercised, concurrently or independently,
from time to time and as often as may be deemed expedient by the Agent or the
Administrative Agent. In no event shall the Agent, in the exercise of the
remedies provided in this Security Agreement (including without limitation in
connection with the assignment of Rents to the Agent, or the appointment of a
receiver and the entry of such receiver onto all or any part of the Land), be
deemed a "mortgagee in possession" or a "pledgee in possession", and the Agent
shall not in any way be made liable for any act, either of commission or
omission, in connection with the exercise of such remedies.
7. Performance by the Agent of the Borrower's Obligations. If the
Borrower fails to perform or comply with any of its agreements contained herein
the Agent, at its option, but without any obligation so to do, may perform or
comply, or otherwise cause performance or compliance, with such agreement. The
expenses of the Agent incurred in connection with actions undertaken as provided
in this Section 7, together with interest thereon at a rate per annum equal to
the Overdue Rate, from the date of payment by the Agent to the date reimbursed
by the Borrower, shall be payable by the Borrower to the Agent on demand and
constitutes part of the Obligations secured hereby.
8. Duty of the Agent. The Agent's sole duty with respect to the
custody, safekeeping and physical preservation of any Trust Property in its
possession, under Section 9-207 of the Uniform Commercial Code or otherwise,
shall be to deal with it in the same manner as the Agent deals with similar
property for its own account. Neither the Agent, any Lender, any Holder nor any
of their respective directors, officers, employees, shareholders, partners or
agents shall be liable for failure to demand, collect or realize upon any of the
Trust Property or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Trust Property upon the request of the Borrower
or any other Person or to take any other action whatsoever with regard to the
Trust Property or any part thereof.
9. Powers Coupled with an Interest. All powers, authorizations
and agencies contained in this Security Agreement are coupled with an interest
and are irrevocable until this Security Agreement is terminated and the Lien
created hereby is released.
10. Execution of Financing Statements. Pursuant to Section
9-402 of the Uniform Commercial Code, the Borrower authorizes the Agent at the
sole expense of the Borrower to file financing statements with respect to the
Security Agreement without the signature of the Borrower in such form and in
such filing offices as the Agent reasonably determines appropriate to perfect
the
8
10
security interests of the Agent under this Security Agreement. A carbon,
photographic or other reproduction of this Security Agreement shall be
sufficient as a financing statement for filing in any jurisdiction.
11. Security Agreement Under Uniform Commercial Code. (a) It is
the intention of the parties hereto that this Security Agreement shall
constitute a security agreement within the meaning of the Uniform Commercial
Code of the States in which the Trust Property is located. If an Event of
Default shall occur, then in addition to having any other right or remedy
available at law or in equity, the Agent may proceed under the applicable
Uniform Commercial Code and exercise such rights and remedies as may be provided
to a secured party by such Uniform Commercial Code with respect to all or any
portion of the Trust Property which is personal property (including without
limitation taking possession of and selling such property). If the Agent shall
elect to proceed under the Uniform Commercial Code, then fifteen days' notice of
sale of the personal property shall be deemed reasonable notice and the
reasonable expenses of retaking, holding, preparing for sale, selling and the
like incurred by the Agent shall include, but not be limited to, attorneys' fees
and legal expenses. At the Agent's request, the Borrower shall assemble the
personal property and make it available to the Agent at a place designated by
the Agent which is reasonably convenient to both parties.
(b) The Borrower, upon request by the Agent from time to time,
shall execute, acknowledge and deliver to the Agent one or more separate
security agreements, in form satisfactory to the Agent, covering all or any part
of the Trust Property and will further execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, any financing statement,
affidavit, continuation statement or certificate or other document as the Agent
may request in order to perfect, preserve, maintain, continue or extend the
security interest under, and the priority of the Liens granted by, this Security
Agreement and such security instrument. The Borrower further agrees to pay to
the Agent (with funds provided by the Lessee for such purpose) on demand all
costs and expenses incurred by the Agent in connection with the preparation,
execution, recording, filing and re-filing of any such document and all
reasonable costs and expenses of any record searches for financing statements
the Agent shall reasonably require. The filing of any financing or continuation
statements in the records relating to personal property or chattels shall not be
construed as in any way impairing the right of the Agent to proceed against any
personal property encumbered by this Security Agreement as real property, as set
forth above.
9
11
12. Authority of Agent. The Borrower acknowledges that the rights
and responsibilities of the Agent under this Security Agreement with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Security Agreement shall be
governed by the Credit Agreement and by such other agreements with respect
thereto as may exist from time to time, but the Agent shall be conclusively
presumed to be acting as agent for the Lenders and the Holders with full and
valid authority so to act or refrain from acting, and the Borrower shall be
under no obligation, or entitlement, to make any inquiry respecting such
authority.
13. Notices. All notices, requests and demands to or upon the
Agent or the Borrower to be effective shall be in writing (or by telecopy or
similar electronic transfer confirmed in writing) and shall be deemed to have
been duly given or made (i) when delivered by hand or (ii) if given by mail,
when deposited in the mails by certified mail, return receipt requested, or (ii)
if by telecopy or similar electronic transfer, when sent and receipt has been
confirmed, addressed as follows:
If to the Agent:
NationsBank, National Association
100 Southeast 2nd Street
FL7-950-14-02
Miami, Florida 33131
Attention: Maria Conroy
Telephone No.: (305) 533-2428
Telecopy No.: (305) 533-2437
If to the Borrower:
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Mr. Val T. Orton
Telephone No.: (801) 246-5630
Telecopy No.: (801) 246-5053
The Agent and the Borrower may change their addresses and transmission numbers
for notices by notice in the manner provided in this Section 13.
14. Severability. Any provision of this Security Agreement
which is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof.
10
12
15. Amendment in Writing; No Waivers; Cumulative Remedies.
(a) None of the terms or provisions of this Security Agreement
may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by the Borrower and the Agent in
accordance with the terms of the Credit Agreement.
(b) No failure to exercise, nor any delay in exercising, on
the part of the Agent, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Agent of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Agent would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
16. Section Headings. The section headings used in this
Security Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
17. Successors and Assigns. This Security Agreement shall be
binding upon the successors of the Borrower, and the Borrower shall not assign
any of its rights or obligations hereunder or with respect to any of the Trust
Property without the prior written consent of the Agent. This Security Agreement
shall inure to the benefit of the Agent, the Lenders, the Holders and their
respective successors and assigns.
18. Borrower's Waiver of Rights. Except as otherwise set forth
herein, to the fullest extent permitted by law, the Borrower waives the benefit
of all laws now existing or that may subsequently be enacted providing for (i)
any appraisal before sale of any portion of the Trust Property, (ii) any
extension of the time for the enforcement of the collection of the indebtedness
or the creation or extension of a period of redemption from any sale made in
collecting such debt and (iii) exemption of the Trust Property from attachment,
levy or sale under execution or exemption from civil process. Except as
otherwise set forth herein, to the fullest extent the Borrower may do so, the
Borrower agrees that the Borrower will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or hereafter in force providing
for any appraisement, valuation, stay, exemption, extension or redemption, or
requiring foreclosure of this Security Agreement before exercising any other
remedy granted hereunder and the
11
13
Borrower, for the Borrower and its successors and assigns, and for any and all
Persons ever claiming any interest in the Trust Property, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the Obligations and marshaling in the event of
foreclosure of the Liens hereby created.
19. GOVERNING LAW. THIS SECURITY AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF FLORIDA.
20. Obligations Are Without Recourse. Anything to the contrary
contained in this Security Agreement, the Credit Agreement, the Notes or in any
other Operative Agreement notwithstanding, neither the Borrower nor the Holders
nor any officer, director, partner or shareholder of any thereof, nor any of the
Borrower's successors or assigns (all such Persons being hereinafter referred to
collectively as the "Exculpated Persons"), shall be personally liable in any
respect for any liability or obligation arising hereunder or in any other
Operative Agreement, including without limitation the payment of the principal
of, or interest on, the Notes, or for monetary damages for the breach of
performance of any of the covenants contained in the Credit Agreement, the
Notes, this Security Agreement or any of the other Operative Agreements. The
Agent, on behalf of itself and the Lenders, agrees that, in the event any of
them pursues any remedies available to them under the Credit Agreement, the
Notes, this Security Agreement, or under any other Operative Agreement, neither
the Agent nor the Lenders shall have any recourse against the Borrower, nor any
Exculpated Person, for any deficiency, loss or claim for monetary damages or
otherwise resulting therefrom, and recourse shall be had solely and exclusively
against the Trust Estate or the Lessee; but nothing contained herein shall be
taken to prevent recourse against or the enforcement of remedies against the
Trust Estate in respect of any and all liabilities, obligations and undertakings
contained in this Security Agreement, the Credit Agreement, the Notes or in any
other Operative Agreement. Notwithstanding the provisions of this paragraph,
nothing in this Security Agreement, the Credit Agreement, the Notes or any other
Operative Agreement shall: (i) constitute a waiver, release or discharge of any
indebtedness or obligation evidenced by the Notes or arising under this Security
Agreement or the Credit Agreement or secured by this Security Agreement, but the
same shall continue until paid or discharged; (ii) relieve the Borrower from
liability and responsibility for (but only to the extent of the damages arising
by reason of): (a) active waste knowingly committed by the Borrower with respect
to any of the Properties or (b) any fraud on the part of the Borrower or any
12
14
such Exculpated Person; (iii) relieve the Borrower from liability and
responsibility for (but only to the extent of the moneys misappropriated,
misapplied or not turned over): (a) misappropriation or misapplication by the
Borrower (i.e., application in a manner contrary to any of the Operative
Agreements) of any insurance proceeds or condemnation awards paid or delivered
to the Borrower by any Person other than the Administrative Agent; (b) any
deposits or any escrows or amounts owed by the Construction Agent under the
Agency Agreement held by the Borrower; or (c) any rents or other income received
by the Borrower from the Lessee that is not turned over to the Administrative
Agent in accordance with the Operative Agreements; or (iv) affect or in any way
limit the Agent's rights and remedies hereunder with respect to the Rents and
rights and powers of the Administrative Agent assigned under the Operative
Agreements or to obtain a judgment against the Borrower (provided, that no
deficiency judgment or other money judgment shall be enforced against the
Borrower or any Exculpated Person except to the extent of the Borrower's
interest in the Trust Estate or to the extent the Borrower may be liable as
otherwise contemplated in clauses (ii) and (iii) of this Section 20).
21. Partial Release; Full Release. The Agent may release for such
consideration as it may require any portion of the Trust Property without (as to
the remainder of the Trust Property) in any way impairing or affecting the Lien,
security interest and priority herein provided for the Agent compared to any
other Lien holder or secured party. Further, upon receipt by the Borrower of the
Purchase Option Price or the Termination Value and payment to the Lenders or the
Holders (as the case may be) of all principal and interest due on the Loans, all
Holder Fundings and Holder Yield, and all other Obligations with respect to any
Property or all Properties encumbered by this Security Agreement, the Agent
shall execute and deliver to the Borrower such documents and instruments as may
be required to release the Lien and security interest created by this Security
Agreement with respect to such Property or all Properties, as the case may be.
22. Miscellaneous. (a) This Security Agreement is one of the
documents which create Liens and security interests that secure payment and
performance of the Obligations. The Agent, at its election, may commence or
consolidate in a single action all proceedings to realize upon all such Liens
and security interests. The Borrower hereby waives (i) any objections to the
commencement or continuation of an action to foreclose the Lien of this Security
Agreement or exercise of any other remedies hereunder based on any action being
prosecuted or any judgment entered with respect to the Obligations or any Liens
or security interests that secure payment and performance of the Obligations and
(ii) any objections to the commencement of, continuation of,
13
15
or entry of a judgment in any such other action based on any action or judgment
connected to this Security Agreement. In case of a foreclosure sale, the Trust
Property may be sold, at the Agent's election, in one parcel or in more than one
parcel and the Agent is specifically empowered (without being required to do so,
and in its sole and absolute discretion) to cause successive sales of portions
of the Trust Property to be held.
(b) Except as provided in the Operative Agreements, the Agent,
with the express written consent of the Borrower, may at any time or from time
to time renew or extend this Security Agreement, or alter or modify the same in
any way. In addition, except as provided in the Operative Agreements, the Agent
may waive any of the terms, covenants or conditions hereof in whole or in part,
or release any portion of the Trust Property or any other security, or grant
such extensions and indulgences in relation to the Obligations secured hereby as
the Agent may determine, in each case without the consent of the Borrower or any
other Person and without any obligation to give notice of any kind thereto and
without in any manner affecting the priority of the Lien hereof on any part of
the Trust Property.
[The remainder of this page has been intentionally left blank.]
14
16
IN WITNESS WHEREOF, the undersigned has caused the Security Agreement
to be duly executed and delivered as of the date first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as Owner Trustee under the
Wackenhut Corrections Trust 1997-1
By:
-------------------------------
Name: Val T. Orton
Title: Vice President
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders and the
Holders
By:-------------------------------
Name: Maria Conroy
Title: Senior Vice President
SIGNATURE PAGE 1 OF 1